OFFICE OF THE ASSISTANT SECRETARY

on, the multiple indicators discussed in the 1996 Clarification that guide
OCR’s analysis of whether institutions are in compliance with Part Three, as
well as the nondiscriminatory implementation of a survey as one assessment
technique.

The Three-Part Test

As discussed above, OCR uses the three-part test to determine whether an institution
is providing nondiscriminatory athletic participation opportunities in compliance
with the Title IX regulation. The test provides the following three compliance
options:

Whether intercollegiate level participation opportunities for male and
female students are provided in numbers substantially proportionate to their
respective enrollments; or

Where the members of one sex have been and are underrepresented among intercollegiate
athletes, whether the institution can show a history and continuing practice
of program expansion which is demonstrably responsive to the developing interests
and abilities of the members of that sex; or

Where the members of one sex are underrepresented among intercollegiate
athletes, and the institution cannot show a history and continuing practice
of program expansion, as described above, whether it can be demonstrated
that the interests and abilities of the members of that sex have been fully
and effectively accommodated by the present program.11

The three-part test is intended to allow institutions to maintain flexibility
and control over their athletic programs consistent with Title IX’s nondiscrimination
requirements. As stated in the 1996 Clarification, “[T]he three-part test
furnishes an institution with three individual avenues to choose from when
determining how it will provide individuals of each sex with nondiscriminatory
opportunities to participate in intercollegiate athletics. If an institution
has met any part of the three-part test, OCR will determine that the institution
is meeting this requirement.”

Part Three of the Three-Part Test — Fully and Effectively Accommodating
the Interests and Abilities of the Underrepresented Sex

This letter focuses on Part Three — whether an institution is fully and effectively
accommodating the athletic interests and abilities of the underrepresented sex.
As the 1996 Clarification indicates, while disproportionately high athletic participation
rates by an institution's students of the overrepresented sex (as compared to
their enrollment rates) may indicate that an institution is not providing equal
athletic opportunities to its students of the underrepresented sex, an institution
can satisfy Part Three if it can show that the underrepresented sex is not being
denied opportunities, i.e., that the interests and abilities of